Pussy Riot, Masks, and Free Speech

In the spring of this year, three members of the Russian feminist punk-rock band Pussy Riot were arrested and charged with hooliganism following a staged anti-Putin performance at the Cathedral of Christ the Savior in Moscow. The band’s protest was aimed at the Russian Orthodox Church leader’s support for Vladimir Putin and was noteworthy for its excess of Russian expletives and the colorful balaclavas that covered the band members’ faces.

In August, the Pussy Riot members were sentenced to “two years deprivation of liberty in a penal colony” by a Russian judge. The harsh sentence was met with passionate international criticism for infringing on freedom of expression and sparked protests around the world.

One such protest took place on August 17 in New York City. To show their support for the members of Pussy Riot, a large crowd of demonstrators gathered outside of the Russian Consulate, many wearing the by then iconic balaclavas.

It’s the balaclavas that got them in trouble.

Three female protestors were arrested and charged with violating certain provisions of New York’s loitering statute, which makes it unlawful for three or more people wearing masks to gather in public for a demonstration or protest.

The reporter noted that this was not the first time the anti-mask law was debated in court and discussed two prior legal challenges. Missing, though, was an analysis of how these cases might affect the fate of the New York Pussy Riot Protestors. Missing until now…

According to the Court of Appeals for the Second Circuit, the anti-mask statute was enacted in 1845 in response to “armed insurrections by Hudson Valley tenant farmers who used disguises to attack law enforcement officers.” Groups of farmers would band together in costume to physically interfere with the efforts of landlords to collect rents. The overall purpose of New York’s anti-mask law was “indisputably aimed at deterring violence and facilitating the apprehension of wrong-doers.”

There is no question that the defendants have violated the New York anti-mask statute; the only way they can dismiss the charges against them would be to successfully challenge the constitutionality of that law.

To succeed in their constitutional challenge, the defendants must demonstrate two things. First, the defendants must show that wearing the balaclavas during the protests constitutes symbolic speech that is protected by the First Amendment. Next, the defendants must show that New York’s anti-mask statute impermissibly burdens their First Amendment right of symbolic speech.

The issue of whether the New York’s anti-mask law is constitutional has been before New York courts twice before. In 2004’s Church of the American Knights of the Ku Klux Klan v. Kerik, members of the American Knights of the Ku Klux Klan challenged the statute’s constitutionality after the members’ application for a parade permit was denied because they intended to wear masks.

The United States Court of Appeals for the Second Circuit found that the masks of the American Knights did not convey a message that was independent from the robes and hoods of the group – and so added no expressive force to the message being presented. The court further found that the symbolic, expressive quality of the masks was further diminished because the Knights weren’t required to wear masks.

Additionally, the United States Court of Appeals held that the plaintiffs’ right to anonymous speech was not implicated in the case because an “individual’s right to speech must always be balanced against the state’s interest in safety, and its right to regulate conduct it legitimately considers potentially dangerous.”

In the second case, People v. Bull, also in 2004, 11 self-proclaimed anarchists were arrested and convicted under New York’s anti-mask statute after covering their faces with bandanas and shouting political slogans during a May Day Parade. Relying on the Kerik case, the court held that the defendants’ First Amendment rights were not implicated by New York’s anti-mask statute.

Given the relevant case law and statutory framework, the Pussy Riot protestors’ constitutional challenge becomes quite clear (the article cites a link to defendants’ memorandum, which can be found here). First, the defendants must argue that wearing balaclavas constituted symbolic, expressive speech because they are uniquely significant to the Pussy Riot protests. Unlike the masks of the KKK members in the Kerik case, the balaclavas added value to the message of support the protestors were attempting to convey.

Second, the defendants must argue that the state interest protected by the anti-mask law – to deter violence and apprehend wrongdoers – was not implicated by the actions of the defendants. To do so, the defendants would contend that they had conducted a peaceful demonstration that did not impair the state’s ability to apprehend criminals.

Conversely, if the case goes up on appeal, the state would argue that wearing balaclavas does not constitute symbolic speech because it adds no expressive value to the message of support the protestors were attempting to convey. The state would likely rely on the Kerik case to argue that, like the masks of the KKK members, the balaclavas were not required in order to protest the Pussy Riot sentencing. In fact, many other protestors outside of the Russian Consulate showed their support by holding signs and posters touting slogans of support, un-balaclava-ed.

Even if the masks were symbolic expression protected by the First Amendment, the state would argue that its interest in public safety, specifically in deterring violence and apprehending wrongdoers, far outweighs any burden placed on the defendants’ free speech rights. Certainly, there is no way for the police force to know whether a demonstration will result in violence or not. The presence of masks in a protest can be very intimidating to the public and the anonymity of the protestors may allow people to feel more comfortable resorting to violence. Further, masked protestors are clearly much harder for the police to apprehend. From a precedent standing-standpoint, the state doesn’t want to allow masks, until such time as violence erupts and culprits get away.

I’m not a gambling man, but I’m going to go out on a limb and predict that a court would likely find that the balaclavas are protected symbolic speech under the First Amendment because of the unique value the pieces of clothing have in regards to the Pussy Riot protests. However, given vital importance of protecting public safety, I believe that the court would find that the purpose of the anti-mask law to deter violence and apprehend wrongdoers outweighs the burden on defendants’ First Amendment rights.

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